People v. Valenzuela

• Decision Date: 07 March 1968
• Docket Number: Cr. 13312
• Citation: 66 Cal.Rptr. 825,259 Cal.App.2d 826
• Parties: The PEOPLE, Plaintiff and Respondent, v. Jess Joe VALENZUELA, Defendant and Appellant.
• Court: California Court of Appeals

Page 825

66 Cal.Rptr. 825

259 Cal.App.2d 826

The PEOPLE, Plaintiff and Respondent, v. Jess Joe VALENZUELA, Defendant and Appellant.

Cr. 13312.

Court of Appeal, Second District, Division 3, California.

March 7, 1968.

Rehearing Denied April 5, 1968.

See 67 Cal.Rptr. 691.

Hearing Denied May 1, 1968.

Loebl, Bringgold & Peck, James D. Loebl, Ventura, under appointment by Court of Appeal, for appellant.

Thomas C. Lynch, Atty. Gen., William E. James, Asst. Atty. Gen., Woodruff J. Deem, Dist. Atty., County of Ventura, Ronald H. Gill, Chief Appeals Deputy, George C. Eskin, Deputy Dist. Atty., for respondent.

SHINN, Associate Justice. ^*

In a trial without jury Jess Joe Valenzuela was convicted of a felony, was denied probation and was sentenced to state prison. An allegation of a prior conviction of felony was found to be true. The defendant appealed in propria persona and counsel was appointed.

The information charged that the defendant violated section 243 of the Penal Code in that '* * * he did, by means of force likely to produce great bodily injury, assault Gordon K. Hubbard, a peace officer engaged in the performance of his duties, when he knew or reasonably should have known that the said Gordon K. Hubbard was a peace officer engaged in the performance of his duties.'

A second count which accused defendant of violation of section 4550 of the Penal Code (rescuing a person in legal custody) was dismissed.

The language of the information was taken from section 243 of the Code which does not define the offense but denounces as a felony a battery committed against the person of a peace officer under the conditions which were described in the information.

'A battery is any willful and unlawful use of force or violence upon the person of another.' (Pen.Code, § 242.)

Section 245 of the Penal Code makes a felony '* * * an assault upon the person of another * * * by any means of force likely to produce great bodily injury * * *.'

No point is made of the use of the word 'assault' in an attempt to allege an aggravated battery and defendant could not have been misled. The crime proved was that Valenzuela kicked Officer Hubbard in the face, chipping one of his teeth, while the officer was making an arrest of one Perez, who was a friend of defendant. The only factual question in dispute was whether the officer was kicked by Valenzuela or someone else.

In summary, the facts developed by the evidence were that at 10:00 p.m. Officer Hubbard, in uniform and driving a black and white marked police car on patrol of the streets of Oxnard, observed a man lying on the sidewalk with his feet and legs under a car parked at the curb. The man was found to be drunk, was handcuffed and eventually placed in the police car. Across the street, and some 35 or 40 feet away, a crowd of 10 or 15 teenagers (later augmented to 25 or 30) was gathered in front of a liquor store. The crowd was in commotion; bottles were hurled at the officer and he was struck by fragments of shattered glass. He radioed for assistance. Hearing pistol shots, Hubbard advanced toward the crowd. He observed a youth tuck a pistol into his waistband; the youth disappeared, but Hubbard saw another youth drinking from a beer bottle, which he placed upon the sidewalk. Learning that the youth, Perez by name, was but 18 years old Hubbard took him into custody, retrieved the beer bottle, and holding the youth, returned to the police car with him and placed the beer bottle on a fender. Perez struggled, struck the officer in an effort to get away, and they fell to the ground. The crowd assembled around the struggling men and the officer was repeatedly struck; he was also kicked several times and as he turned his head to see who was kicking him, Valenzuela kicked him in the mouth, chipping a tooth. In the meantime Officers Bowen, Devorack, Hurley and Phillips arrived in a car. They saw Valenzuela kicking Hubbard several times; they saw Valenzuela run away; there of them followed him and placed him under arrest as he fought and struggled with them. Perez escaped. On the stand Valenzuela testified that he was 3 or 4 feet away from the struggling officer and Perez; the officer was being struck by others in the crowd which had gathered, but that he did not strike or kick him.

There was evidence that while defendant was being placed in the police car he struck his head upon the frame of the door. He was taken to the station and later to a hospital. An route to the station Officer Bowen informed defendant as to his constitutional rights and defendant said he understood them. Without interrogation, defendant voluntarily stated 'I am sorry that I kicked the policeman in the head. I will never do it again.' Later, on the way to the hospital, defendant repeated the statement and Officer Hurley heard defendant make this statement. During the booking of defendant, and after he had been informed of his constitutional rights by Hubbard, defendant voluntarily said 'I am sorry. I didn't mean to kick you. I was just trying to help my buddy to get away from you.'

Although several claims of error are asserted we consider first the only one deserving of particular discussion, namely, that defendant did not in open court waive his right to trial by jury, in compliance with the requirement of Article I, section 7 of the California Constitution.

It is said in appellant's opening brief: 'In the case at bar, there were several defects in the purported waiver. One, it was made not in open court, but in chambers as reflected by the Clerk's Transcript, p. 7A. Two, no indication in the Reporter's Transcript of any kind was made that the defendant waived the jury by his own express use of the language. Three, the Clerk's Transcript notation did not purport to reflect the actual words of the defendant if any.'

Points two and three were disposed of by the addition of a Reporter's Supplemental Transcript. Thus there remains the argument based upon the erroneous meaning appellant gives to the words 'chambers' and 'open court,' as found in the clerk's minutes.

The day before the trial defendant waived his right to a jury trial of the allegation that he had suffered a prior conviction of felony and it was ordered that the trial of that issue would be before the court.

On the following day the cause was called for trial. Present were the defendant and his counsel, a Deputy Public Defender, a Deputy District Attorney, and a panel of prospective jurors. The clerk's minutes state: 'In chambers with respective counsel and the defendant present, on motion of counsel for the People, the court orders that Count II of the Information be and hereby is dismissed.

'Defendant, at this time, withdraws his request heretofore made for a jury trial and now requests a trial by Court, to which request, counsel for the People has no objection.

'Respective counsel advise the Court of their willingness to have the trial remain before this Court, to which agreement, said defendant concurs.

'Resuming in open Court, the Court now thanks and excuses the panel of prospective jurors. * * *

'Said trial now proceeds before the Court with respective counsel and the defendant present.'

Upon request of the Attorney General the record was augmented by addition of a transcript of the reporter's notes of the proceedings in the room called 'chambers.' It reports the proceedings as follows:

'Ventura, California, Tuesday, December 6, 1966; 10:00 a.m.

'MR. PAIK: Your Honor, I believe Mr. Eskin has a motion to dismiss Count II. MR. ESKIN: Your Honor, under the provisons of Penal Code 1385, the People would respectfully move the Court to dismiss Count II of the information in the furtherance of justice. Count II alleges a violation of Penal Code 4550. THE COURT: Count II is dismissed. MR. PAIK: At this time, your Honor, the defendant wishes to withdraw his previous request for a jury trial and the defendant wishes to request a Court trial. Is that your desire, Mr. Valenzuela? THE DEFENDANT: Yes. MR. PAIK: And counsel joins the waiver. THE COURT: I think that is sufficient to make the waiver. MR. ESKIN: Yes, your Honor. The People have no objection to the defendant's waiver.'

The meaning of the word 'chambers' varies with the context in which it is used. It may mean a room adjacent to a courtroom in which a judge performs the duties of his office when his court is not in session. The word 'chambers' is also commonly used in a different sense. When a judge performs a judicial act while the court is not in session in the matter acted upon, it is said that he acted 'in chambers' whether the act was performed in the 'judge's chambers,' the library, at his home, or elsewhere. (Von...